German Court Blurs Lines of Registrar Responsibility

A German court has reached the rather startling conclusion that a domain registrar can be held responsible for alleged copyright infringement at a website even though its only contact with it was to perform the original domain registration. As reported by PC Advisor on February 7th, “A domain name registrar can be held liable for the copyright infringements of a website it registered if it is obvious the domain is used for infringements and the registrar does nothing to prevent it, the Regional Court of Saarbrücken in Germany has ruled.” (http://www.pcadvisor.co.uk/news/tech-industry/3501030/german-court-finds-domain-registrar-liable-for-torrent-sites-copyright-infringement/)

The dispute involved Universal Music, which is rather notorious for its litigiousness, and the website h33t.com, a torrent tracker site that allegedly contained a link allowing downloads of Robin Thicke’s “Blurred Lines” CD (we’d provide a link to the #1 hit song’s rather salacious lyrics, but if we that did Universal might come after us).

Key-Systems, which registered the domain but was not hosting it, argued that it was not responsible for the copyright infringement, but the court ruled that it had a duty to investigate and to take corrective action if the copyright infringement was “obvious”. According to Key’s General Counsel, Volker Greimann, “The courts’ definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing.” We know Volker well from interactions at ICANN meetings, and in an e-mail exchange he explained that Key directed Universal to the webhosting company and the registrant, but that Universal continued its litigation against them instead – we can speculate that their aim may have been less to shut down the offending link than to set a broad new legal precedent.

Key is currently considering whether to appeal, with Volker observing, “If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties.” If the ruling stands Key-Systems faces a potential fine of 250,000 Euro ($339,000).

For now, the disturbing decision is simply one of a single German court and only has ramifications for registrars subject to German jurisdiction. In the United States, Section 512 of the Digital Millennium Copyright Act (DMCA) provides a safe harbor for online service providers (OSPs) that provide notice-and-takedown capability for the expeditious removal of infringing material and the removal of repeat infringers; OSPs include Internet service providers and certain other online intermediaries (for more background see http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act and http://en.wikipedia.org/wiki/Online_service_provider). U.S. registrars regularly receive notice-and-takedown requests from copyright owners when they are hosting a particular website alleged to be infringing.

We wish Key-Systems well if they decide to appeal this disturbing decision. The registrar marketplace is highly competitive, and the German decision heaps a huge amount of responsibility on a company that only collected a few Deutschemark for facilitating a domain registration and had no further business relationship with the domain registrant or the website.